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Beginning today and likely running through midweek, the Supreme Court of the United States will hear arguments will hear arguments pertaining to the Affordable Health Care Act, otherwise know affectionately as Obamacare.

The question that will ultimately be addressed is this: Who is in charge here, conservative Supreme Court justices and the Rush Limbaugh-led Republican Party, or the people? We’ll see. Stay tuned.

Either way, just so you know in case you are an American Citizen who is naive on civics: The Supreme Court Justices are appointed for life by the President but only with the “advice and consent” (= approval after a long period of public interrogation) of the Senate. Furthermore, the Supreme Court justices are often selected from the body of judges that make up the Federal system, which were also appointed in a similar manner. Who sits in the Oval Office and the Senate thus determines the long term make up of the court. Keep that in mind when you go into the voting booth (or as you are contemplating staying home) this November.

The question that will ultimately be addressed is this: Who is in charge here, conservative Supreme Court justices and the Rush Limbaugh-led Republican Party, or the people? We’ll see. Stay tuned.

Although I agree with the rest of your post, I think it’s a mistake to frame constitutional issues in this way, as the judges versus “the people”; it sounds awfully close to conservative complaints about “judicial activism”. It sounds like you’re implying that the courts, being unelected, should always defer to the expressed will of “the people” – which, of course, in a constitutional democracy, they can’t and shouldn’t. In reality, when one thinks about it, I suspect most of us agree that it is the responsibility of the courts to protect certain individual liberties even against the expressed will of the electorate, to ensure that the majority does not have carte blanche to oppress minorities. To offer recent examples, I imagine you and I would agree that it was quite right for the Ninth Circuit to strike down Proposition 8 in Perry v. Brown, and for the federal government to challenge the constitutionality of Arizona’s repressive and racist SB 1070 in United States v. Arizona. Going further back, it’s easy to think of countless “activist” decisions that liberals do and should celebrate, from Roe to Miranda.

Do the courts sometimes interfere and strike down legislation when they shouldn’t? Yes, very much so; I doubt any of us would want to defend the infamous 1905 decision in Lochner v. New York, for instance, or the spate of subsequent decisions in the early twentieth century in which a conservative SCOTUS struck down progressive social legislation on various constitutional grounds. Certainly, I wouldn’t want to return to those days. But nor would I want to return to the days of reflexive judicial deference to the legislature and executive; that kind of deference is what led to atrocious decisions like Korematsu, for instance, and to sentiments like Justice Frankfurter’s dissent in West Virginia Board of Education v. Barnette, in which he thought it was perfectly constitutionally permissible for the state to force schoolchildren to participate in compulsory nationalistic ceremonies on pain of expulsion, since it should be for legislators and not courts to decide such things. I think it’s very dangerous to embrace, rhetorically, the idea that the majority should always get what the majority wants.

Now, in this case I’m inclined to agree with you that the Affordable Care Act is constitutional and should be upheld (though I’m really not an expert on federalism or the Interstate Commerce Clause, so this is a very tentative judgment based on limited knowledge). And, being a progressive, I’m all in favour of a more egalitarian health care system. So I should stress that I’m not disagreeing with you as to what should happen in this specific case. I just dislike the rhetoric of “the judges versus the people” and “down with judicial activism”, as much so when it comes from the left as from the right.

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